93 Decision Citation: BVA 93-01649
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-43 286 ) DATE
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THE ISSUES
1. Entitlement to service connection for polyneuritis or
peripheral neuropathy.
2. Entitlement to service connection for chronic gastritis.
ATTORNEY FOR THE BOARD
G. P. Hanson, Counsel
INTRODUCTION
The veteran had recognized periods of military service from
September 1941 to November 1942, and from April 1945 to
October 1945, to include prisoner-of-war confinement by the
Japanese from April 1942 to November 1942.
This matter came before the Board on appeal from a rating
decision of March 1991 issued by the Manila, Philippines,
Regional Office (hereinafter RO). The notice of
disagreement was received in July 1991. The statement of
the case was issued in July 1991. The substantive appeal
was received in August 1991. The veteran is without
representation in the appeal. The case was initially
docketed at the Board in September 1991.
In December 1991, the Board remanded the case to the RO for
consideration of entitlement to service connection for the
disabilities at issue under the new presumptive provisions
of the law applicable to former prisoners-of-war and for the
purpose of obtaining additional medical information. Such
development having been completed, in July 1992, the RO
granted the veteran's claim of entitlement to service
connection for malnutrition and assigned a 10 percent
evaluation pursuant to the provisions of Diagnostic Code
6399-6315 of VA's Schedule for Rating Disabilities, as set
out in 38 C.F.R. Part 4 (1991), and it affirmed the
previously entered decision in reference to the issues
currently before the Board on appeal. Thereafter, a
supplemental statement of the case was issued in July 1992.
The appeal was redocketed at the Board in September 1992,
and the case is now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by the veteran, in substance, that the
disabilities at issue either had their onset in military
service or that, in connection with his former
prisoner-of-war status, they were manifested to a
compensable degree subsequent to service.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following a review and consideration of all the
evidence and material of record in the veteran's claims
folder, and for the following reasons and bases, the Board
finds that the preponderance of the evidence is against the
veteran's claim of entitlement to service connection for the
disorders at issue.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. Polyneuritis or peripheral neuropathy were not shown to
have existed during the veteran's service nor were
polyneuritis or peripheral neuropathy, noninfectious in
nature, shown to have been manifested to a compensable
degree subsequent to service.
3. Chronic gastritis is not shown to have existed during
the veteran's service or to have been manifested to a
compensable degree subsequent to service.
CONCLUSIONS OF LAW
1. Polyneuritis or peripheral neuropathy was not incurred
in or aggravated by military service and polyneuritis or
peripheral neuropathy, noninfectious in nature, may not be
presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307,
3.309 (1991).
2. Chronic gastritis was not incurred in or aggravated by
military service and it may not be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West
1991); 38 C.F.R. §§ 3.307, 3.309 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds that the veteran's claims are well grounded
in that they are plausible within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). We are also satisfied that all
relevant facts are on file and that the Department of
Veterans Affairs (VA) has met its duty to assist the veteran
in the development of facts pertinent to his claim, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991).
In an affidavit for Philippine Army personnel executed in
April 1945, the veteran reported only that he had been
treated in 1942 for dysentery and malaria. In a September
1945 affidavit, he reported being treated in April 1942 for
malaria and that there had been no further treatment.
In a statement, dated in August 1985, an official of the
Philippine General Hospital reported all clinical records
prior to February 1945 were destroyed by fire during the
liberation of Manila. Thus, it was reported that no
certificate of treatment at the facility could be issued on
behalf of the veteran. In September 1985, a private
physician, G. F. Rios, Jr., M.D., reported that the veteran
had been under his care from 1975 to 1985 for peripheral
neuropathy (beriberi); beriberi heart disease; progressive
bilateral deafness; chronic recurrent dysentery with
diarrhea; and anxiety reaction with resultant essential
hypertension. Dr. Rios also concluded that neuropathy,
beriberi heart disease, and defective hearing were secondary
to avitaminosis and malnutrition.
In reports of various specialist examinations conducted by
the VA in June 1986, it was shown that there was no current
medical evidence of the veteran having central nervous
system dysfunction. A subsequent VA psychosocial survey,
conducted as part of a prisoner-of-war protocol conducted in
July 1986, outlined similar findings.
A report of physical examination conducted by the VA in
December 1990 indicated that the veteran had hypoesthesia of
the feet associated with a diagnosis of peripheral
neuropathy and an examination in reference to gastritis was
not conducted at this time. A report of subsequent VA
neurological examination conducted by the VA in February
1992 shows that there were findings suggestive of a
diagnosis of peripheral neuropathy, primarily motor, and
probably post infectious in etiology. There were no
findings in reference to when such a disorder might have
developed. A gastrointestinal workup was not completed
because the veteran could not tolerate procedures incident
thereto.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran
is a former prisoner-of-war and was detained or interned for
not less than 30 days and peripheral neuropathy, except
where directly related to infectious causes, or peptic ulcer
disease becomes manifest to a degree of 10 percent anytime
after such service, such disease shall be presumed to have
been incurred in service, even though there is no evidence
of such a disease during the period of service. Such
presumptions are rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991);
38 C.F.R. §§ 3.307, 3.309 (1991)
The veteran's service medical records are negative for any
clinical evidence of the disorders at issue. The same is
true in reference to the post service period, except that a
private physician reported in 1975 that the veteran had been
treated by him, beginning on that date, for disabilities, to
include peripheral neuropathy. Subsequent reports of VA
physical examinations conducted in 1986 were equivocal in
reference to whether he had peripheral neuropathy and there
was no clinical evidence of gastrointestinal disease, to
include chronic gastritis.
Further, while peripheral neuropathy was diagnosed at the
conclusion of neurological examination conducted by the VA
in December 1990, on VA neurological study conducted, at our
request, in February 1992, it was explained that while the
veteran had peripheral neuropathy, predominantly motor, in
scope, it was probably post infectious in etiology. In
reference to gastrointestinal disease, an examination for
that purpose was not conducted in December 1990, and he was
not worked up for that same purpose in 1992, because he
could not tolerate the procedures incident thereto.
The Board finds in the absence of service medical records
showing findings or applicable diagnoses, the statements
made by the veteran or those made by a private physician,
are insufficient to substantiate that polyneuritis or
peripheral neuropathy or chronic gastritis, existed during
service or during prisoner-of-war confinement.
In addition, service connection for such disorders on the
basis of the veteran's former prisoner-of-war status is not
warranted because, as indicated earlier, the most recent
official physical examination conducted in 1992 concluded
that his polyneuritis or peripheral neuropathy were post
infectious in origin and, therefore, not a disability
subject to the presumption. Further, since he would not or
could not cooperate in a recent request for a clinical
work-up to determine whether his claimed gastritis is due to
peptic ulcer disease, the Board is without a sufficient
basis upon which to predicate entitlement to service
connection for either of the disorders at issue.
ORDER
Service connection for polyneuritis or peripheral neuropathy
or chronic gastritis is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER
EUGENE A. O'NEILL
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.